| Chou v Ocean Ambulette Serv., Inc. |
| 2015 NY Slip Op 06876 [131 AD3d 1091] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Magdalena Chou, Appellant, v OceanAmbulette Service, Inc., et al., Respondents, et al.,Defendant. |
Weser & Weser, P.C., Brooklyn, N.Y. (Nicholas E. Tzaneteas of counsel), forappellant.
Baker, Greenspan & Bernstein, Bellmore, N.Y. (Patrick J. Garvey of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.),dated November 19, 2014, as denied, without prejudice to renewal upon the completionof discovery, that branch of her motion which was for summary judgment on the issue ofliability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the plaintiff's motion which was for summary judgment on the issue ofliability is granted.
On May 29, 2012, at approximately 12:30 p.m., the plaintiff was crossing OceanAvenue at its intersection with Jerome Avenue in Brooklyn, when she was struck by anambulette owned by the defendant Ocean Ambulette Service, Inc. (hereinafter OceanAmbulette), and operated by the defendant Nuvakh Izrailov (hereinafter the defendantdriver), which was turning left from Jerome Avenue onto Ocean Avenue. The plaintiffcommenced this action against the defendants to recover damages for personal injuries.The plaintiff moved for, inter alia, summary judgment on the issue of liability againstOcean Ambulette and the defendant driver. The Supreme Court denied, withoutprejudice to renewal upon the completion of discovery, that branch of the plaintiff'smotion which was for summary judgment on the issue of liability. We reverse the orderinsofar as appealed from.
The evidence submitted by the plaintiff established, prima facie, her entitlement tojudgment as a matter of law on the issue of liability, and that she was free fromcomparative fault (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Berrios-Lemus v Village of SpringVal., 122 AD3d 650, 651 [2014]; Ramos v Bartis, 112 AD3d 804 [2013]; Buchinger v Jazz LeasingCorp., 95 AD3d 1053 [2012]; Azeem v Cava, 92 AD3d 821 [2012]; Arazashvilli v Executive FleetMgt., Corp., 90 AD3d 682, 683 [2011]; Qamar v Kanarek, 82 AD3d 860, 861 [2011]). The plaintiffestablished that she waited for the pedestrian signal to be in her favor prior to enteringthe crosswalk, and that she exercised due care by looking in both directions along OceanAvenue, and for any vehicles turning left from Jerome Avenue, before she [*2]entered the crosswalk (see Buchinger v Jazz LeasingCorp., 95 AD3d at 1053; Martinez v Kreychmar, 84 AD3d 1037, 1038 [2011]).While crossing at a steady normal pace, and having almost completed crossing OceanAvenue in the crosswalk, the plaintiff was struck by the vehicle operated by thedefendant driver, which came from behind the plaintiff and failed to yield theright-of-way (see Castiglione vKruse, 130 AD3d 957 [2015]). In opposition, the defendants failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]).
Furthermore, contrary to the defendants' contentions, the motion was not premature.The defendants failed to demonstrate "that additional discovery may lead to relevantevidence or that the facts essential to justify opposition to the motion were exclusivelywithin the knowledge and control of the plaintiff" (Buchinger v Jazz LeasingCorp., 95 AD3d at 1053; see Arazashvilli v Executive Fleet Mgt., Corp., 90 AD3d682, 683 [2011]). The mere hope or speculation that evidence sufficient to defeat amotion for summary judgment may be uncovered by further discovery is an insufficientbasis for denying the motion (see Arazashvilli v Executive Fleet Mgt., Corp., 90AD3d at 683; Martinez v Kreychmar, 84 AD3d at 1038).
Accordingly, the Supreme Court should have granted that branch of the plaintiff'smotion which was for summary judgment on the issue of liability. Rivera, J.P., Balkin,Miller and LaSalle, JJ., concur.